Officers Timothy Wade, Jeffrey Wade, Steve Huffman, Debbie Gray and Robert Dubie (collectively plaintiffs) were all employed by the city of Blythe as police officers. The city informed each of the officers in the years 2000 or 2001, that they were the subject of complaints being investigated by the Internal Affairs department. More than one year after the notifications, the officers were notified that the closed investigation reports would be placed into their personnel files. The investigations were closed only after demands from this author based on the passing of time limits under Govt. Code § 3304 (d). I filed a petition for writ of mandate claiming that the city’s placement of the internal investigation reports into the personnel files constituted punitive action, which was barred by the statute of limitations. We concurrently filed a request for injunctive relief. After a hearing on August 16, 2002, the trial court entered a judgment finding that insertion of the reports into the officers’ personnel files was punitive and therefore violated Government Code section 3304, subdivision (d), enjoining the city from placing the reports in the personnel files, and ordering the city to remove any such reports from the officers’ personnel files. It also awarded attorney fees and costs.
The city appealed to the California Fourth District Court of Appeal, which recently, in an unpublished decision, ruled in favor of the officers, awarded costs, and sent Castle, Petersen & Krause back for additional attorney’s fees on behalf of the officers and the Legal Defense Fund.
This case arose when the Blythe police administration refused a demand to remove the offending materials from the officers’ respective files. The city, in essence, cried…what are we to do with them? We took the position that was their problem, caused by their failure to simply obey the law. This was not an onerous burden to a police administration we thought. We sued and they lost.
We reasoned that since the one-year statute of limitations under Govt. Code § 3304 (d) had passed, no punitive action could be taken, and that the placing of the uncompleted IA reports into the files amounted to punitive action even though no findings were made.
The city claimed its hands were tied and notwithstanding government code protections of the officers, it had to maintain the materials in the personnel files.
The Fourth District Court of Appeal wrote:
“City claims that the trial court’s order was erroneous because (1) it was required by law to maintain the records in the plaintiffs’ personnel files, and (2) placement of the reports into the personnel files did not constitute punitive action (the courts examined and rejected both of these contentions).
City cites Penal Code sections 832.8 and 832.5, Government Code section 34090, Aguilar v. Johnson (1988) 202 Cal.App.3d 241 (Aguilar), Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703 (Miller) and Pitchess v. Superior Court (1974) 11 Cal.3d 531 for the proposition that it was required by law to insert the investigation reports into the officers’ personnel files (the court reasoned that)…none of these authorities bears such a mandate…that;
1. Penal Code section 832.8 simply defines the documents that are considered personnel records for purposes of maintaining confidentiality. It does not require that investigation reports must be maintained in an officer’s personnel file. Rather, it merely states that when such reports are maintained, they are considered confidential under Penal Code section 832.7.
2. Penal Code section 832.5 pertains to the maintenance of citizen complaints regarding department or agency personnel. The city points to the requirement in subdivision (b) that citizen ‘complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years’ as mandating that such reports be kept in an officer’s personnel file. However, that subdivision also states that all such retained complaints ‘may be maintained either in the peace or custodial officer’s general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer’s employing department or agency, the complaints described by subdivision (c) shall be removed from the officer’s general personnel file and placed in [a] separate file designated by the department or agency, in accordance with all applicable requirements of law.’ An officer’s general personnel file is the one ‘maintained by the agency containing the primary records specific to each peace or custodial officer’s employment, including evaluations, assignments, status changes, and imposed discipline.’ (Pen. Code, § 832.5, subd. (d)(1).) These general personnel files are apparently the ones at issue in the instant case. Thus, rather than mandating that complaints be kept in the officer’s personnel file, Penal Code section 832.5 specifically authorizes them to be maintained elsewhere, and even mandates that they be kept elsewhere for purposes of determining promotion, transfer, or disciplinary action. It further requires that complaints found to be frivolous, unfounded or exonerated ‘shall not’ be kept in the general personnel files. (Pen. Code § 832.5, subd. (c).) Further, simply because the records are ‘deemed’ personnel records for purposes of the California Public Records Act (Govt. Code, § 6250 et seq.) and Evidence Code section 1043 (involving Pitchess motions), it does not follow that they must be maintained in the officer’s general personnel file. Deeming them such for certain limited purposes does not require that they be so considered for all purposes.
Similarly, Government Code section 34090 requires that city records be maintained for at least two years and allows the destruction of city records, with legislative approval and written permission of the city attorney only after that time has passed. Again, assuming that the subject documents are city records under this code section, though they are required to be maintained, Government Code section 34090 does not require that they be kept in the officer’s personnel file.
In summary, none of the authorities cited by the city imposes a legal mandate that the reports at issue be maintained in the plaintiff’s general personnel files. This argument does not support a reversal of the trial court.”
The city took a shotgun approach in defending it’s unlawful actions. The Court of Appeal, at length and in detail, shot down each “doom and gloom” argument the city made. The points are too lengthy for one article. Probably the most important finding by each court was that the materials alone constituted “punitive action” under the P.O.B.R.
We cited numerous authorities in our pleadings, all of which were adopted by the court in its written decision. In short, the court ruled there need not be an adverse finding by the agency. Rather, the mere placement of the investigative materials into the files was punitive under the code. Since the placement was after the one-year statute, the materials must be removed.
While the court declined to publish this particular case its findings are instructive on how to approach similar future violations. The law firm of Castle, Petersen & Krause is happy to share the decision with associations facing this dilemma.
About the Author: Bob Krause is a partner in the law firm of Castle, Petersen & Krause LLP, Newport Beach/Temecula. A retired sergeant and P.O.A. activist from Oceanside P.D., Krause has been representing peace officers’ interests for more than 20 years.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- James Walker Yakima Police Patrolsman Assn
This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- James Beckman Miracosta College POA
Excellent service everytime.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Erick Gaunt Palos Verdes POA
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Brian Schopf Elk Grove POA
Keep up the good work.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Steven Moorehouse Redding POA
Thank you for your help.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- James F. Beland Lake County SDA
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.